In a decision dated June 1, 2017 (case reference: I ZR 139/15), the First Civil Senate of the BGH, which is responsible for copyright law among other things, referred a number of questions to the ECJ regarding the balance between copyright law and the fundamental rights to freedom of information and freedom of the press.
Online portal publishes secret papers
The reason for the order for reference is a dispute between the Federal Republic of Germany and the operators of the online portal of the Westdeutsche Allgemeine Zeitung. The latter had obtained some “parliamentary briefings” (UdP) from the years 2005-2012 by unknown means and published them on its online portal under the name “Afghanistan Papers”.
The Federal Government commissions weekly situation reports on the Bundeswehr’s deployments abroad. These are then forwarded as “parliamentary briefings” to selected members of the Bundestag, the Federal Ministry of Defense and other federal ministries. They are always marked as classified information and carry the note “VS-Nur für den Dienstgebrauch” (classified information for official use only). This is the lowest of 4 classification levels. Only a slimmed-down version labeled “Unterrichtung für die Öffentlichkeit” (UdÖ) is forwarded to the press.
The German government now considers the publication of the UdPs as Afghanistan papers to be a copyright infringement and is seeking an injunction against the operators of the online portal.
So far, the courts have upheld the action brought by the FRG
The regional court had previously upheld the BRD’s claim. The appeal against the judgment before the Higher Regional Court was also unsuccessful. However, the operators of the portal are continuing to pursue the dismissal of the claim with their appeal to the BGH.
In the opinion of the BGH, a number of questions arose during the appeal proceedings regarding the interpretation of German copyright law in the light of the Copyright Directive (Directive 2001/29/EC).
Federal Court of Justice: Do the EU legal restrictions apply?
In particular, the question must be clarified as to whether there is no copyright infringement if the limitation provisions of Art. 2 lit. A and Art. 3 para. 1 of the Copyright Directive apply. Accordingly, an infringement of copyright is ruled out if the publication is covered by the right of reproduction or the right of communication to the public.
According to the Federal Court of Justice, it is also conceivable that the publication of the UdP is covered by the rules on reporting on current events and the right to quote. A balancing of fundamental rights is also unavoidable when applying the limitation rule. Thus, freedom of information and freedom of the press must be weighed comprehensively against the exploitation interests and confidentiality interests of the FRG.
Scope for the transposition of directives into national law
As in another order for reference from the same day, the BGH also asks the ECJ whether the legislator has any leeway in transposing the provisions of EU law into national law.
This question is relevant to the decision because, according to the case law of the Federal Constitutional Court, domestic legal provisions that transpose a European Union directive into German law are generally not to be measured against the fundamental rights of the Basic Law, but solely against Union law and thus also the fundamental rights guaranteed by it […].
Conditions of the barrier regulations not fulfilled
Furthermore, the BGH referred the question to the ECJ as to whether the Union’s fundamental rights can justify a restriction of the author’s exclusive right of reproduction. This question arises because the requirements of the limitation provisions are not met according to the wording of the Copyright Directive.
This is because the operators limited themselves to making the UdPs accessible to everyone without reporting on them themselves. The publication was therefore not related to reporting and did not fulfill the purpose of the citation. The reports had also not been published lawfully – as required by citation law.
No general balancing of interests outside of copyright law
The BGH also made it clear in its order for reference that no general balancing of interests outside of copyright law could be considered. The reason for this is that the copyright regulations on a European basis already comprehensively regulate the legal relationship between the copyright holder and the user with the limitation provisions. This rules out the possibility of the operators of the online portal relying solely on an increased public interest in the publication of the UdPs.